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I entirely accept that the details of the amendment might reasonably be criticised. We have taken a view about the right approach. We would welcome other views on how it should be applied; but we are convinced that the Government have to face up to this and include in the Bill an appropriate statutory defence. I beg to move.
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Lord Garden: My Amendment No. 62 would add to the rules of engagement amendment, if they were to be put on a statutory basis. It is a question of what happens when servicemen find themselves operating under the rules of engagement of another nation. Members of the Committee may not be aware that this is happening as we speak.
On 19 June, I received an Answer to a Written Question about the arrangements for Royal Air Force personnel embedded with US personnel on Predator drones perhaps thousands of miles away from the operations, but who can release weapons and are subject to somebody's rules of engagement. The Minister very helpfully told me:
“UK embedded personnel act within US rules of engagement, may use US collateral damage methodology and work to US delegated authorities”.—[Official Report, 19/06/06; col. WA 54.]
So on certain occasions, people who are subject to our service law are subject to another nation's rules of engagement. That perhaps gives us an extra dimension of the problem of how we put rules of engagement on a statutory basis.
Turning to the broader aspect of rules of engagement, I should be interested to hear the Minister's reaction. I am not sure whether it is a good idea. My first reaction was that when they are put on a statutory basis, there will perhaps be a tendency for them to be less flexible, which may make life more difficult. I am also slightly concerned that subsection (7) of the new clause makes observance of the rules of engagement an absolute defence. Of course, you are still required to be proportionate in your response at any stage of warfare. It may be that you can operate under quite robust rules of engagement, but the particular circumstances do not mean that you need to go to their outer edges; you could do something less damaging. We still need to be able to look at the proportionality argument.
If we were to put rules of engagement on a statutory basis, we must consider how we handle being under those of other nations. I have yet to be convinced that this is the place to put them, however, and will wait to hear what the Minister has to say. I beg to move.
Lord Campbell of Alloway: My name is on Amendment No. 61, and I am grateful to my noble friend Lord Kingsland for his exposition of the importance of the principle at stake.
I support the spirit of all these amendments. Why? Amendment No. 61—exclusively relating to written rules of engagement, albeit established by a somewhat Byzantine, insufficiently flexible process—could have served as a defence for Clegg, Scots Guardsmen Fisher and Wright and other cases. It must therefore be dealt with, and related and extended to AmendmentNo. 62A to include compliance with orders. It is not readily possible to distinguish between orders and rules of engagement, especially if they are given verbally in the field. Reverting to the principle expounded so well by my noble friend Lord Kingsland, a serviceman must know where he stands.
The toil of drafting such an amendment could well be in vain, however. Such an amendment should never pre-empt what has been referred to as the new services law, separate and distinct from the civil
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Here I have to declare an interest because I represented them before the Army Board on two occasions and prepared their defence, and called their evidence and that of their commanding officer, who is now General Sir John Kiszely. On the second occasion, General Sir Mike Jackson sat on the board and questioned in depth the three men who gave evidence: the two Scots Guardsmen and the general. The board came to the conclusion that the two guardsmen could not be discharged from the Army because the morning orders of the day for the guardsmen were to stop and search, their rules of engagement were, “Halt or I’ll fire” and they were ignored twice. They only had before them a defence of self-defence, which was rejected by the judge, but there was no rejection of what was accepted by the Army Board and General Sir Mike Jackson, which was that they complied with their orders and rules of engagement. The transcript of those proceedings is lying around in the MoD somewhere and forms strong confirmation for the type of amendment on the broader scale that would subsume the amendment that could be produced out of Amendments Nos. 61, 62 and 62A.
As the noble Lord, Lord Drayson, said, the concept of a military law separate and distinct from the civilian system was spoken to on Second Reading by the noble and gallant Lords, Lord Bramall, Lord Guthrie, Lord Vincent of Coleshill, Lord Inge, Lord Boyce, the noble Lord, Lord Ramsbotham, my noble and learned friend Lord Mayhew of Twysden and other noble Lords. It was heralded by the Judge Advocate General Judge Blackett—I am glad that my noble friend Lord Thomas of Gresford referred to him—in the evidence that he gave to the Select Committee in the other place. It was quoted by the noble Lord, Lord Ramsbotham, on Second Reading and was expressly accepted by the noble and gallant Lord, Lord Boyce. The noble Lord, Lord Truscott, who is an eminent historian, not a lawyer or a soldier, said:
“If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding”.—[Official Report, 16/2/06; col. 1276.]
The noble and gallant Lord, Lord Bramall, said:
“Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established”.—[Official Report, 14/06/06; col. 242.]
That remark was expressly approved by my noble and learned friend Lord Mayhew of Twysden, who is in his place. There is a matrix for an amendment which I hope may be tabled on Report that would subsume the three amendments to which we have been speaking.
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Lord Vincent of Coleshill: On Amendment No. 61 I understand the concerns expressed by the noble Lord, Lord Garden, that rules of engagement becoming part of the Bill itself could complicate them unnecessarily and make them, in practical terms, less useful. That issue surely needs to be addressed. However, on the need to incorporate that amendment into the Bill, in principle I think that there is a case for it. The reason is that historically—certainly going back to when I started my military service and in the Second World War before that—the Geneva conventions and other international agreements sought to establish the rules of warfare.
We have moved on vastly. You have only to look at Iraq and Afghanistan where our adversaries, or our potential adversaries—however you define them these days—do not see themselves subjected to any human rights or to any international law whatever. That is therefore a very important reason why our forces should have clear direction on the rules of engagement that should apply. Those should be on a legally sound footing so that if their interpretation of them is challenged in any way, there is something to base their judgment on.
Additionally, after today, after the conflict phase of an operation, such as in Iraq, the situation is even more complicated. Very junior ranks indeed on the back streets of Basra will have to make up their minds in seconds about whether what action they take is legal. Therefore, I think that in principle Amendment No. 61 is important and should be given careful consideration, but taking account of the point made by the noble Lord, Lord Garden.
Earl Attlee: There is no doubt that there is a problem with rules of engagement, but I have some difficulties with Amendment No. 61. First, the details on the existing rules of engagement card do not seem to me to change from operation to operation. I can quote the exact words. They are engraved in my brain. In every operation the rules of engagement are the same. Secondly, subsection (8) says that the Secretary of State may classify the rules, but subsection (9) says that the cards should not be classified.
Thirdly, and perhaps most importantly, the actual rules of engagement for an operation, which are issued by PDHQ, are contained in a massive and detailed document. It is not a little card, like my cue cards; it is a big document, and it is surprisingly precise. It might say that you can attack electricity pylons but not an electricity substation. The details would have to be classified because if the enemy knew what was in the detailed rules of engagement they would not need to defend that particular infrastructure and therefore could concentrate their defensive efforts on infrastructure that could be attacked.
However, I have some sympathy with Amendment No. 62A. I was very surprised at what the noble Lord, Lord Garden, said about foreign rules of engagement and the Answer to his Written Question. I will certainly be talking to him later about that.
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Lord Ramsbotham: I preface my brief intervention by saying how much I and, I suspect, many of my colleagues have appreciated the care with which the noble Lord, Lord Drayson, has kept us in touch with the process of this Bill and has made certain that we were briefed during the various movements on it. It is highly appreciated and we are very grateful.
I support what the noble Lord, Lord Kingsland, said. As the nature of operations changes into what General Sir Rupert Smith described in his book as “a war amongst the people”, it is ever more important that every member of our Armed Forces committed to such conflicts is absolutely crystal clear on what are the rules of engagement before they are committed to those operations. That means that those rules of engagement must have been considered and worked out in advance by the Secretary of State and the chain of command downwards to include every individual. I suspect that some of the problems in Iraq have arisen because those rules of engagement were not absolutely crystal clear in the minds of everyone concerned. Therefore, it makes sense that the requirement to do that should be in statute so that it cannot be fudged before people are launched.
I also support the intent behind AmendmentNo. 62 because one type of operation on which we are embarked—United Nations operations—is one in which there is the most complicated preparation of rules of engagement, which will differ in each operation and will apply to contingents from a large number of different forces. Therefore, it is essential, where we are involved with forces from other nations, that those compromises are reached—again, before we go on operations. It is essential, although this is not in the nature of the Bill but in the reform of the United Nations, that we set up machinery to make certain that the rules of engagement of all those committed to United Nations operations are sorted out in the same way as they should be for national operations. That remains paramount.
I support Amendment No. 62A, tabled by the noble Lord, Lord Campbell of Alloway, because it seems to me to be part of the glue that ties the three amendments together. I therefore support the idea that the three should be taken and considered in great detail before it is decided whether to include them.
Lord Thomas of Gresford: I follow the noble Lord, Lord Ramsbotham, in his expression that the rules of engagement should be crystal clear. The noble and gallant Lord, Lord Vincent, also called for clear direction. My experience relates to the paratrooper trial that took place in Colchester last September—a year ago. One problem that emerged in that case was that no one knew what were the precise rules of engagement. The issue did not arise for several weeks; in preparing the case, the prosecution had not set out what were the rules of engagement.
The defendants were of the view that they were operating at the time—which was after President Bush had declared victory and soft caps were being worn by the British military—on Northern Ireland rules. It subsequently emerged that the rules of engagement had not changed and that at the time,
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There was no communication to the soldiers, who were simply on patrol in the Maysan province, as to what they could and could not do—at least, no direct indication to them. I think that they were operating on the basis that an officer had said to them, “Okay, boys, now it's Northern Ireland rules; we can all relax a bit”. That is about as far as it got. There was no crystal clear direction as to what they should do.
Of course, the rules of engagement change. The FRAGOS—a phrase that will be familiar to those with a military background—seem to bring in various additional rules for operations as they progress. The rules of engagement may shift from time to time, but it is very important, if there is a change, that the people charged with the responsibility—the people who will end up at a court martial—are aware of the significance of the rules and of the parameters within which they can act. I fully support the amendment.
Lord Lyell of Markyate: I, too, rise to support what my noble friend Lord Kingsland said, including the fact that this is to some extent a probing amendment. This is a very difficult subject. I remember being involved in the development of the rules of engagement when we were involved in Yugoslavia. This included cards—I seem to remember that they were, perhaps appropriately, yellow in those days—and getting the exact wording right. The card is what is handed to the soldier, who is likely to find himself in the law court, but behind it lie much more complex rules of engagement, to which the noble Earl, Lord Attlee, rightly referred. It would greatly assist our future debates on this matter if the Minister would either put at least some of the rules of engagement into the Library or write to us with copies of them, for use with appropriate discretion if necessary. I hope that it is not necessary—I hope that he can put them into the Library—but if he cannot, surely we can at least be provided with them in sufficient detail so that we can all apply our minds to the very difficult questions that can arise.
It is essential that each serviceman should be provided with the guidance and protection that he needs. It should be remembered that the rules of engagement on the card with which he is provided will almost inevitably require him to judge whether his life is in danger and possibly to justify that at some point. It may be necessary and right that he should do so. I can see difficulties in putting the requirements on to the statute book, but it is well worth trying to do so. At the heart of the Bill is a system of military law that applies to all the services and which provides them with a proper framework of law and a proper court framework, which is largely the court-martial framework, but which does not divorce them from their position as civilians—or at least as citizens—and that is part of the normal framework of the law so far as possible. The rules of engagement are a very important part of this, and we have a good deal more exploring to do, but I commend the amendment as a good start.
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Lord Craig of Radley: Before I had given a lot of thought to this topic, I did not think that the rules of engagement should be in the Bill. Further thought on my part and the debate so far have strongly reinforced my second view that there is a place for covering rules of engagement in the Bill. Some excellent points have been made by noble Lords and noble and gallant Lords, so I do not intend to repeat them.
It is, however, important to highlight the fact that the amendment would make it absolutely clear that the rules of engagement have been endorsed by Government and the Secretary of State, and that the military are operating those rules of engagement, having been given the direction and guidance of Ministers. Without that, there is a possible danger that, in the post-hostilities phase, questions will be asked about whether the military have been following the guidance and the direction that they had been given. I therefore strongly endorse the amendment because it brings to the fore the fact that it is a ministerial and political initiation, which gives the guidance and direction to the servicemen who will be carrying out the operation.
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Lord Inge: I, too, support the inclusion of the rules of engagement. Perhaps I may sound one word of caution: the Bill refers to the Defence Council agreeing those rules of engagement. In my six years of experience in London, I think that the Defence Council met twice. If this is to be in the Bill, there must be a system that allows the rules of engagement to be amended quickly if the hostilities on the ground change one way or the other.
Viscount Slim: I, too, support the amendment. It seems that it is the luckless soldier who gets court martialled if things go wrong, and there may be times when he is to blame. However, by ducking the issue and not having something on it in the Bill, the Government are wriggling and not taking responsibility.
As I think noble and gallant Lords have mentioned, responsibility should be driven right up the chain of command. That is so important. It may be unpopular, but perhaps a senior officer or a Minister will have to explain himself in a court case, which would be no bad thing.
The noble Lord, Lord Campbell of Alloway, made some startling points. We were together on the business in Ulster when we rehearsed it and explained it in your Lordships’ House. Out of that came one thing that I would say to the Minister: I understood that about 140 to 150 shots were fired in that instance—which is quite separate from other instances—and it was night time. Only one person was hit. I call that extremely bad shooting and marksmanship. I would have had that group out very early the next morning for some good battle firing training. From that, when the noble Lord gives your Lordships’ House figures on casualties in Afghanistan, I hope that the figures of the Taliban dead are pretty accurate. Have the bodies been counted or are we still shooting an awful lot of ammunition?
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Lord Drayson: I will write separately to the noble Viscount on his question relating to the situation in Afghanistan.
I have listened carefully to the points made today, which reflect the central importance of this issue. I will respond in considerable detail because they are so important. However, before I do so, I should like to make two points that go to the heart of the issues that we are debating. The noble Lord, Lord Kingsland, said that he understood that soldiers who act in accordance with the rules of engagement would therefore be in compliance with the law. It is important to say that that is not the case. Soldiers are told that the rules of engagement mean that the operations that they are undertaking are consistent with the law, but it is still up to individual soldiers how they carry out their role in these operations. That reflects the fact that the rules of engagement are an operational framework, which I will come back to in some detail in a moment. They are not a legal document.
In response to one of the important points made by the noble Lord, Lord Campbell, about the situation where a soldier makes a mistake, it is important for me to reassure the Committee that if a soldier acts in combat on his view of the situation, even if it is wrong, he will not be guilty of a crime. That is a fundamental principle, which we need to keep clearly in focus as we consider this matter. These are difficult issues. A noble Lord described the rules of engagement as a Byzantine process. I understand why there is a feeling that that is the case, which is why I have taken considerable trouble to give Members of the Committee an opportunity to understand that process. We had a briefing earlier in the summer about the rules of engagement.
Fundamentally, from listening to the argument across the Committee, I believe that there has been, and still is in some quarters, a misunderstanding of the functions of rules of engagement in the modern situation. The rules of engagement give a framework for the conduct of an operation, which will be consistent with the law. They are often extremely complex and are always confidential. For them not to be confidential would put information into the public domain; that information would then be available to the enemy, which would be very prejudicial to the interests of our Armed Forces. We need to recognise that these rules of engagement are drafted by our Armed Forces personnel for operational purposes. They are not drafted as statements of the law. It is vital that they should not be. To draft them in such a way would make them much less effective in operational circumstances. It is important that we keep that very much in the forefront of our thinking. Rules of engagement are not drafted like law.
Lord Campbell of Alloway: I apologise for intervening, but we are coming to a crucial point. Does the noble Lord accept that, at times in action, it is virtually impossible to distinguish between rules of engagement and orders, and that you have to rely on a presumption of compliance, throwing the burden on the Crown to disprove and to show that there was intent not to comply? In other words, both have to be carried together. They cannot be separated.
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